Browne v Minister for Justice, Equality & Law Reform and Ors

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 04 December 2012
• Neutral Citation: [2012] IEHC 526
• Court: High Court
• Date: 04 December 2012

[2012] IEHC 526

THE HIGH COURT

[No. 3218 P./2004]

Browne v Min for Justice & Commissioner of An Garda Siochana

BETWEEN

WILLIAM BROWNE

PLAINTIFF

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND COMMISSIONER OF AN GARDA SÍOCHÁNA

DEFENDANTS

KELLY v BON SECOURS HEALTH SYSTEM LTD UNREP CROSS 26.1.2012 2012 IEHC 21

NYHAN v CMSR OF AN GARDA SIOCHANA & MIN FOR JUSTICE UNREP CROSS 26.7.2012 2012 IEHC 329

QUIGLEY v COMPLEX TOOLING & MOULDING LTD 2009 1 IR 349

INDUSTRIAL RELATIONS ACT 1990 (CODE OF PRACTICE DETAILING PROCEDURES FOR ADDRESSING BULLYING IN THE WORKPLACE) (DECLARATION) ORDER 2002 SI 17/2002 SCHED PARA 5

MAHER v JABIL GLOBAL SERVICES LTD 2008 1 IR 25 2005 16 ELR 233 2005/37/7677 2005 IEHC 130

TORT LAW

Personal Injuries

Damages - Employment - Garda - Bullying and harassment - Psychiatric injury - Breach of contract - Conspiracy - Duty of care - Defamation - Repeated inappropriate undermining of dignity of employee - Reasonable forseeability - Whether incidents complained of amounted to bullying and harassment - Whether injury to health of plaintiff - Whether reasonably foreseeable injury would occur - Kelly v Bon Secours Health Systems Ltd [2012] IEHC 12, (Unrep, Cross J, 26/1/2012); Nyhan v Commissioner of An Garda Síochána [2012] IEHC 329, (Unrep, Cross J, 26/7/2012); Quigley v Complex Tooling and Moulding Ltd [2008] IESC 44, [2009] IR 349 and Maher v Jabil Global Services Ltd [2005] IEHC 130, [2008] 1 IR 25 applied - Damages awarded (2004/3218P - Cross J - 4/12/2012) [2012] IEHC 526

Browne v Minister for Justice Equality and Law Reform

Facts: The plaintiff had at all material times been a member of An Garda Siochána. He initiated proceedings against the defendant for damages for personal injury due to the defendant's negligence, breach of duty and breach of contract of employment. He alleged the working conditions he was employed under were intolerable. He alleged that he was subjected to a campaign of bullying and harassment that his superior officers not only exposed him to due to their failure to investigate his complaints, but also participated in.

The plaintiff alleged that ill feeling from his superior officers began shortly after he was requested to go to Naas to assist in a murder investigation. He made claims for subsistence allowance which he believed were refused by his superintendent because the latter was unhappy one of his detectives had been posted elsewhere. The plaintiff subsequently made a complaint at the decision which he feels damaged the relationship. During the investigation, the same superintendent requested that the plaintiff go to Naas and bring back an unmarked Gardai vehicle. The Plaintiff went to Naas but left the vehicle overnight and it was subsequently stolen. As a result, the superintendent revoked the plaintiff's permission to drive the vehicle under para. 22.2(1)(a) of the code which stayed in place for 8 and a half years. The plaintiff claimed this was invalid as para. 22.2(1)(a) of the code refers to competency to drive. The plaintiff also had his firearm removed for a similar period of time for improper use. The plaintiff further claimed that an attempt was made by an individual in management to implicate him as being involved in a local political protest. This was committed when a leaflet that had the plaintiff's Gardai identification number and signature forged onto it was given to an Inspector. The plaintiff's superintendent also initiated a criminal investigation against plaintiff over a claim for £7.95 in overtime. The plaintiff further contended that statements in relation to a rape investigation were stolen from his locker which he complained about but no action was taken.

Due to these complaints amongst others, the plaintiff requested that the defendants investigate and intervene. It was alleged that the defendants failed to do so.

Held by Cross J that in relation to the plaintiff's claim for subsistence, that whilst the subsistence claim was legitimate, the subsequent refusal did not amount to bullying or harassment. In relation to the decision to revoke the plaintiff's permission to drive a Gardai vehicle, it was held that para. 22.2(1)(a) of the code did allow such permission to be revoked. However, the fact this stayed in place for 8 and a half years was excessive and amounted to bullying and harassment at a high level of management. The same view was taken in relation to the plaintiff's firearm. In terms of the leaflet given to the Inspector, it was clear that a member of management had attempted to implicate the plaintiff and this also amounted to bullying and harassment. The criminal investigation for the overtime claim initiated by the superintendent was determined to be a result of the breakdown of the relationship and was yet another example of the ongoing campaign against the plaintiff. In relation to the theft of the rape investigation statements, it was held that this was probably done by junior members of the Gardai but that this was evidence of a bullying campaign against him which was foreseeable by senior management but not acted upon.

It was further held that whilst the plaintiff's complaints to the defendants were not taken seriously and clearly amounted to a campaign of bullying and harassment, the defendant's action did not amount to this.

As a result of the various claims, €5,000 was awarded for special damages, €55,000 for damages for bullying and harassment and €25,000 for defamation

Award of €85,000 made to the plaintiff.

1 JUDGMENT of Mr. Justice Cross delivered on the 4th day of December. 2012

1. Introduction

2 2 1.1 The plaintiff in this case was born on 1 ^st June, 1957 and was attested as a member of An Garda Síochána on 25 ^th February, 1978 and remained a member in good standing until his retirement in December 2011.

3 3 1.2 The plaintiff is claiming damages for a personal injuries loss and damage as a result of the alleged negligence breach of contract, conspiracy and breach of duty on the part of the defendants in allegedly permitting the plaintiff to be subjected to a campaign of bullying and harassment by his superiors and failing to take any proper steps to investigate his complaints.

4 4 1.3 The plaintiff is also claiming other ancillary reliefs.

5 5 1.4 Counsel on behalf of the plaintiff summarised the plaintiff s complaints under twelve different headings. These complaints will be dealt with in turn subsequently.

2. Bullying and Harassment

6 2 2.1 As this Court has emphasised in Kelly v. Bon Secours Health System Limited [2012] IEHC 21 and Nyhan v. Commissioner of An Garda Síochána & Anor [2012] IEHC 329, there is no separate or distinct tort of bullying and harassment. The defendant owes a duty of care not to expose a worker to injury. In this regard, the plaintiff though a Garda Síochána is in no different position than any employee. One of the sub-aspects of this duty is the issue of bullying and harassment in the workplace.

7 3 2.2 The plaintiff's case is that the bullying and harassment came not merely from fellow employees but were in fact orchestrated or directed from senior members of An Garda Síochána or what is sometimes known as corporate bullying.

8 4 2.3 In cases where the bullying emanates from fellow workers, issues such as foreseeability and the knowledge of employers are always relevant.

9 5 2.4 Clearly if the bullying is found to have emanated from management then no issue of vicarious liability would apply.

10 6 2.5 In Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349 at para. 13, Fennelly J. adopted the definition of "workplace bullying" at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as being an accurate statement of the employers obligations as follows:-

"Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying."

11 Fennelly J. went on to state:-

"Counsel for the defendant submitted, and I would accept, that bullying must be:-"

12 · repeated;

13 · inappropriate;

14 · undermining of the dignity of the employee at work."

15 7 2.6 The court accepted that definition in Kelly and Nyhan (above) and does so now.

16 8 2.7 If this plaintiff proves a campaign by management against him then unlike most plaintiffs in bullying case, he does not have to establish that the activities above complained of were known by the first named defendant or the second named defendant as he is alleging that senior management was deliberately orchestrating and organising the bullying.

17 9 2.8 As I stated in Kelly and Nyhan, in my view, the best summary of the questions to be addressed in a case such as this was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-

18 a "(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;

19 (b) if so, was that injury attributable to the workplace and;

20 (c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances."

21 10 2.9 As stated by this Court in Nyhan, these three questions are, of course, subject to the pre-existing requirement that the plaintiff establish an actionable wrong in the form of negligence, breach of duty, breach of contract or conspiracy. Whether or not any injury...